Local pundit says:

7.15.2007 Frank Rich on the state of homeland security

That leaves Mr. Chertoff, whose department has vacancies in a quarter of its top leadership positions, as the de facto general in charge of defending us from the enemy he had that "gut feeling" about, the Qaeda not in Iraq. Last week we learned from a sting operation conducted by Congressional investigators that this enemy needs only a Mail Boxes Etc. account, a phone and a fax machine to buy radioactive material from American suppliers and build a dirty bomb.

For all Washington's hyperventilating about the Iraqi Parliament's vacation plans, it's our own government's vacation from reality this summer that should make us very afraid.

An internal investigation that the House Intelligence Committee has refused to make public portrays the panel as embarrassingly entangled in the Randy "Duke" Cunningham bribery scandal.

The report, a declassified version of which was obtained by the Los Angeles Times, describes the committee as a dysfunctional entity that served as a crossroads for almost every major figure in the ongoing criminal probe by the Justice Department.

But then this took place and I'm completely confused. Here's RJ Eskow in Huffington Post:

... Predictably, the Lieberman measure passed 97-0. But it's not the reporting requirements themselves that are dangerous - it's the amendment's language. It lists a hodgepodge of undocumented and inflammatory accusations before stating that "the murder of members of the United States Armed Forces by a foreign government or its agents is an intolerable and unacceptable act of hostility against the United States by the foreign government in question." These are words that invite an act of war against Iran, even in the absence of clear evidence of involvement.

The amendment doesn't just ask for intelligence on Iranian activity. It requires ongoing reports on proactive U.S. efforts against alleged Iranian efforts, placing political pressure on our military to become more active against Iran. Word in Washington is that top military leaders are resisting an attack on Iran, saying we lack the resources. This is a great way to lean on the generals to change their minds.

... I don't know what kind of "strategy" the Democrats think is in play when they sign off on a bizarre statement about Iran that opens up all kinds of avenues for the president to start another war, but they are engaging in a very dangerous game. Arming the Republicans with any excuse to shoot the moon right now is political malpractice. On their best days, the Republicans are reckless and delusional. Now that they're desperate, anything could happen. Why did the Dems just hand them a loaded gun? I don't get it.

The bottom line is that the opponents of universal health care appear to have run out of honest arguments. All they have left are fantasies: horror fiction about health care in other countries, and fairy tales about health care here in America.

7.15.2007 Inside Bush's decision to give Scooter Libby a pass. Michael Isikoff

The president was conflicted. He hated the idea that a loyal aide would serve time. Hanging over his deliberations was Cheney, who had said he was "very disappointed" with the jury's verdict. Cheney did not directly weigh in with Fielding, but nobody involved had any doubt where he stood. "I'm not sure Bush had a choice," says one of the advisers. "If he didn't act, it would have caused a fracture with the vice president."

So Scooter got off because George Bush was afraid to piss off Dick Cheney. Is the same dynamic driving the president on Iraq? Are the efforts of administration pragmatists like Robert Gates and Condi Rice to shift the White House on the war being thwarted by 43's reluctance to face the wrath of his venomous veep?

7.13.2007 Harriet Miers's Contempt of Congress: By JOHN W. DEAN

Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?
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When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.

7.13.2007 Paul Krugman: An Unjustified Privilege

What’s at stake here is a proposal by House Democrats to tax “carried interest” as regular income. This would close a tax loophole that is complicated in detail, but basically lets fund managers take a large part of the fees they earn for handling other peoples’ money and redefine those fees, for tax purposes, as capital gains.

The effect of this redefinition is that income that should be considered by normal standards to be ordinary income taxed at a 35 percent rate is treated as capital gains, taxed at only 15 percent instead. So fund managers get to pay a low tax rate that is supposed to provide incentives to risk-taking investors, even though they aren’t investors and they aren’t taking risks.

For example, the typical hedge-fund manager has a 2-and-20 contract ­ that is, he gets a fee equal to 2 percent of the funds under management, plus 20 percent of whatever his fund earns. It’s not exactly straight salary, but none of this income comes from putting his own wealth at risk. Except for the fact that he might make a billion dollars a year, he resembles a waitress whose income depends on a mix of wages and tips, or a salesman who lives on a mix of salary and commissions, more than he resembles an entrepreneur who sinks his life savings into a new business.

7.13.2007 The Best Health Care Is Reserved for Congress By Don Sloan, excerpted from Chapter 2 of Practicing Medicine Without a License! The Corporate Takeover of Healthcare in America.

... Don Sloan, M.D., shows that members of Congress enjoy health coverage with unlimited doctor visits, no deductibles and no co-pays -- all for $35 a month. So what about the rest of us?

Mr. Bush still refuses to talk about what almost everyone else now understands is essential: the need to develop an orderly plan to extricate American troops from a lost cause and reposition them in ways that can genuinely protect our national interests. A new classified study by the intelligence community offers one more reminder why continued delay and delusion is so dangerous. It says that six years after the Sept. 11 attacks Al Qaeda has rebuilt itself and has settled into safe havens in Pakistan.

Why not start with releasing the transcripts of Bush and Cheney's interviews with special prosecutor Patrick Fitzgerald?
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So now is the time to ask the president what Cheney meant when he wrote that little note. Why did the vice president write a note claiming that "this Pres." had asked Libby to "stick his head in the meat grinder"? Did the president ask Libby to take the fall for others in the White House? Did he know the extent of the vice president's involvement in the effort to ruin the Wilsons? When exactly did he learn what Cheney, Libby, Rove and Fleischer had done to advance that scheme?

A Newsweek poll in September 2004 showed that 36% believed "Saddam Hussein’s regime in Iraq was directly involved in planning, financing, or carrying out the terrorist attacks of September 11th, 2001." Now the number in the same poll is 41%. Here

UPDATE: Over at Corrente, Shane-O spots this in Bush's speech today:

Economic development funds are critical to helping Iraq make this political progress. Today I'm exercising the waiver authority granted me by Congress to release a substantial portion of those funds.

That's the final chapter in the toothless Iraq Supplemental Bill that Congress passed after Bush's veto.

... pieced together, Novak’s hedged disclosures and other evidence, including facts from the trial of former White House aide I. Lewis “Scooter” Libby, shed light on the dark underbelly of this extraordinary scandal, albeit sometimes unintentionally.

On Tuesday, Mr. Bush argued that we should give the surge a chance and that the costs of withdrawal would be enormous.

Just because President Bush says something doesn’t mean it is fatuous. It’s true, for example, that our withdrawal may lead to worse horrors in Iraq. But don’t ignore the alternative possibility, believed overwhelmingly by Iraqis themselves, that our departure will make things better.

In a broadly worded legal opinion, the Justice Department has concluded that President Bush's former top lawyer, and possibly other senior White House officials, can ignore subpoenas from Congress to testify about the firings of U.S. attorneys.

The three-page opinion raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt for not cooperating with the investigation into the firing last year of eight top prosecutors.

"Hmmm. A very knowledgeable emailer says it's a felony ..." Josh Marshall
18 U.S.C. Sec. 1505, 18 U.S.C. Sec. 1515(b)

Now, this is odd, to say the least. Let's look more carefully at what's happening here. Taylor and Miers actually are faced with legal "directives" -- subpoenas from congressional committees. And their failure to give testimony responsive to the subpoenas is a crime, by virtue of a duly enacted statute (2 U.S.C. 192). The President, of course, believes that the application of that statute is unconstitutional in this case, because of privilege -- but neither Taylor nor Miers has personally concluded that the statute is unconstitutional as applied here (in which case noncompliance would, perhaps, be an example of civil disobedience). And, notwithstanding any rhetoric from Fred Fielding, the President does not have any legal power to "direct" Taylor and Miers (both private citizens) to violate the statutory obligation -- to commit a crime -- whatever his view of the constitutional question might be. Most importantly, the President has taken exactly no legal steps (i.e., seeking an injunction) to prevent the application of the statute here.

All of which is to say that Taylor and Miers have chosen to commit a federal crime, and to disregard the only legal directives (the subpoena, the federal statute) to which they are in fact subject.

Even if Mr. Bush was directly involved, Ms. Miers and Ms. Taylor would have no right to withhold their testimony. The Supreme Court made clear in the Watergate tapes case, its major pronouncement on the subject, that the privilege does not apply if a president’s privacy interests are outweighed by the need to investigate possible criminal activity. Congress has already identified many acts relating to the scandal that may have been illegal, including possible obstruction of justice and lying to Congress.

7.11.2007 "White House threatens House student loan bill veto"

7.10.2007 "Panel Moves to Cut Off Funds to Cheney"

7.10.2007 GARDINER HARRIS, NYT

Former Surgeon General Richard H. Carmona told a Congressional panel Tuesday that top Bush administration officials repeatedly tried to weaken or suppress important public health reports because of political considerations.
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Emily Lawrimore, a White House spokeswoman, said the surgeon general “is the leading voice for the health of all Americans.”

“It’s disappointing to us,” Ms. Lawrimore said, “if he failed to use this position to the fullest extent in advocating for policies he thought were in the best interests of the nation.”
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When stem cells became a focus of debate, Dr. Carmona said he proposed that his office offer guidance “so that we can have, if you will, informed consent.”

“I was told to stand down and not speak about it,” he said. “It was removed from my speeches.”
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Similarly, Dr. Carmona wanted to address the controversial topic of sexual education, he said. Scientific studies suggest that the most effective approach includes a discussion of contraceptives.

“However there was already a policy in place that did not want to hear the science but wanted to preach abstinence only, but I felt that was scientifically incorrect,” he said.
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“The correctional health care report is pointing out the inadequacies of health care within our correctional health care system,” he said. “It would force the government on a course of action to improve that.”

Because the administration does not want to spend more money on prisoners’ health care, the report has been delayed, Dr. Carmona said.

“For us, the science was pretty easy,” he said. “These people go back into the community and take diseases with them.” He added, “This is not about the crime. It’s about protecting the public.”

NYT Editorial: A first step is to stop thinking of the surgeon general as an agent of any administration and instead view the job as a national ombudsman for public health. The post could be given its own specified staff and budget ­ it currently relies on the Department of Health and Human Services ­ freeing it to pursue topics without administration approval. Or the position could be made even more independent, much like the inspectors general who root out waste and corruption.

Congress could also ban any effort to censor or delay the surgeon general’s reports and speeches. If this White House doesn’t understand why that independence is so important to the nation’s health, the American public certainly should.

However, it is REALLY REALLY important to note that the acts indicted in Articles of Impeachment do NOT have to be crimes in themselves AND the mere fact that the President may have committed an criminal act, does not in and of itself constitute grounds for imapechment. Is your head spinning yet? It's not as crazy at it sounds at first blush.

As Alexander Hamilton pointed out in Federalist Paper #65, the jurisdiction of a Court of Impeachment would not be the same as that of a criminal court.

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITCAL,…..

[emphasis in original].

Further, Justice Joseph Story writing in his Commentaries on the Constitution in 1833 put forth with regard to impeachment

Not but that crimes of a strictly legal character fall within the scope of the power [to impeach], but that it has a more enlarged operation, and reaches, what are aptly named political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests…..

[emphasis mine]

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.

The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis “Scooter” Libby’s sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.

“We have always known that heedless self-interest was bad morals; we know now that it is bad economics.” So declared F.D.R. in 1937, in words that apply perfectly to health care today. This isn’t one of those cases where we face painful tradeoffs ­ here, doing the right thing is also cost-efficient. Universal health care would save thousands of American lives each year, while actually saving money.

So this is a test. The only things standing in the way of universal health care are the fear-mongering and influence-buying of interest groups. If we can’t overcome those forces here, there’s not much hope for America’s future.

(2) Unlike the two judges in the majority, the dissenting judge (Gilman) did issue findings regarding the illegality of the NSA program once he found that the plaintiffs had standing to sue. And he decided conclusively that the NSA program violates FISA and that the administration's two legal excuses are invalid. That means that the only two federal judges ever to rule on the legality of the NSA warrantless eavesdropping program -- Judge Taylor and now Judge Gilman -- have both decisively concluded that the President's warrantless eavesdropping is illegal.
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Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

7.7.2007 Where Have All the Leaders Gone? By Lee Iacocca with Catherine Whitney

... If I've learned one thing, it's this: You don't get anywhere by standing on the sidelines waiting for somebody else to take action. Whether it's building a better car or building a better future for our children, we all have a role to play. That's the challenge I'm raising in this book. It's a call to action for people who, like me, believe in America. It's not too late, but it's getting pretty close. So let's shake off the horseshit and go to work. Let's tell 'em all we've had enough.

So, President Clinton's actions in pardoning Marc Rich (and several other persons) were thoroughly investigated, Clinton waived executive privilege and allowed his aides to testify, and while almost no one (except perhaps Scooter Libby and Jack Quinn) agreed with the reasons for Clinton's decision, no wrongdoing by Clinton was found to have occurred.

Now it's time to put President Bush's commutation of Scooter Libby to the same test with a congressional hearing. Those whom Bush consulted should testify. Bush should waive executive privilege.

Was Bush's commutation of Libby's jail sentence just bad judgment? Or, did he do it to silence Libby and prevent him from spilling the beans on Cheney or Bush himself in PlameGate?

The public is entitled to know. via emptywheel

February 10, 2004 -- "If there's a leak out of my administration, I want to know who it is," Bush told reporters at an impromptu news conference during a fund-raising stop in Chicago, Illinois. "If the person has violated law, that person will be taken care of.

Presidents have the power to grant clemency and pardons. But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

Just another obstruction of justice
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There are lots of unanswered questions surrounding the Valerie Plame saga, but Scooter Libby's commutation ensures they won't be answered. via Dan Froomkin

All of this means that Bush's decision yesterday to commute Libby's prison sentence isn't just a matter of unequal justice. It is also a potentially self-serving and corrupt act.
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William Schneider reported on CNN ... Americans are very resentful over the fact that someone who was convicted of a serious crime, for which many, many other people are in jail right now had his sentence commuted and will not go to jail. That's the important thing: Will not go to jail, because he has friends in high places. That's exactly what enrages people about business in Washington.
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Josh Marshall blogs ... The deeper offense is that the president has used his pardon power to shortcircuit the investigation of a crime to which he himself was quite likely a party, and to which, his vice president, who controls him, certainly was.

It is tempting to view the commutation of prison time for Lewis Libby, the disgraced White House aide convicted of lying and obstructing justice, as another instance of craven hypocrisy by President Bush. As a candidate in 1999, Bush assured voters, "I don't believe my role is to replace the verdict of a jury with my own," unless "new facts" arose or the trial was "unfair" -- a standard which the Libby case clearly fails.

A three-judge panel of the District of Columbia Circuit Court of Appeals found Libby has not raised a question for judges “that is ‘close’ or that ‘could very well be decided the other way’” — the standard for remaining free on appeal.

Barring further appeals, Libby’s term will start when the U.S. Bureau of Prisons decides where he will serve his time and sets a date for him to surrender. But his lawyers may appeal Monday’s ruling to the U.S. Supreme Court, which rarely intervenes in these kinds of cases.

Chief Justice John Roberts, who oversees the D.C. circuit, would decide whether to send any emergency petition to the full court.

Illegal immigrant workers can be identified by the government in several ways. Nearly 40 percent of them, or approximately 3.5 million, may have valid Social Security numbers but have overstayed their visas. Their identities can easily be established by matching Social Security Administration data against the visa expiration dates in the files of the Bureau of Immigration and Customs Enforcement.

The other illegal immigrants working on the books have submitted fraudulent identification that, when logged by the government, shows up as being either non-existent or duplicative of existing Social Security accounts. When a fraudulent Social Security number is sent to Washington, the government deposits the accompanying money in an “earnings suspense file,” a kitty that by last October had grown to $586 billion. The Social Security Administration does not, however, determine the reasons for the discrepancy (which could be a clerical error or a legitimate name change) or alert Homeland Security and the employer that something is amiss.

Social Security administrators assert, erroneously, that they are not permitted to aid immigration law enforcement or to share data with the Department of Homeland Security. The real reason for their reticence is their fear that more aggressive electronic enforcement might invite political outrage. In 2002, the Social Security Administration chose merely to inform employers of Social Security number discrepancies by sending 950,000 “mismatch” letters. That action so angered businesses and immigration advocates that a year later the modest bureaucratic effort was largely ended.

7.4.2007 Thomas Friedman:

"Of course, not all Muslims are terrorists. But it's been widely noted that virtually all suicide terrorists today are Muslims. Angry Norwegians aren't doing this ­ nor are starving Africans or unemployed Mexicans. Muslims have got to understand that a death cult has taken root in the bosom of their religion, feeding off it like a cancerous tumor."

How Not To Promote Democracy

... This ought to be obvious generally, but especially in a country like Iran. We were involved in toppling their democratically elected government. We have just invaded two countries on their borders. In both cases we promised to create democracy, and in both cases large chunks of the countries we invaded are in chaos. Under these circumstances, the last thing in the world that any Iranian pro-democracy movement needs is us sending them money. They might as well start wearing buttons saying "Kiss Me! I'm CIA!"

While President George W. Bush bears the ultimate responsibility, the nature of the evidence against Cheney and his closest associates is so specific and overwhelming that it makes sense to impeach and bring him to trial first.
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Who is Stepping Up to the Plate?

An African American judge, Anna Diggs Taylor of the U.S. District Court in Detroit ruled on Aug. 17, 2006, that the surveillance program was unconstitutional (against the Fourth Amendment prohibition on “unreasonable searches and seizures”) as well as illegal (violating FISA).

She emphasized that “the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution.”
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They have an excellent model in the late Barbara Jordan, D-Texas, an African-American legislator and educator who made such a valuable contribution while sitting on the House Committee on the Judiciary during the hearings on impeaching President Richard Nixon.

“My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.... [As was said at] the North Carolina ratification convention: ‘No one need be afraid that officers who commit oppression will pass with immunity.’”

If the Vice President thinks that there is no authority to which he reports, then he has committed a high crime against this nation and its democracy.
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Republicans and Democrats in Congress should be unifying now on all fronts to immediately contain the power of Cheney and his team if they in fact do not feel that there are any controls on them that should be acknowledged.

7.1.2007 Abuse of Executive Privilege NYT Editorial

Mr. Bush’s claim of executive privilege may be somewhat stronger on the spying program, since he personally issued the order to start the wiretapping. But executive privilege cannot be used to cover up actions and policies that involve an outright violation of the law, as the spying program did.
Did? Does?

DOWNTOWN SAN DIEGO – Transcripts of four hearings in the case of Thomas Kontogiannis, a financier who pleaded guilty in connection with the Randy “Duke” Cunningham scandal, will remain sealed, a federal appeals court said yesterday.
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In an unusual step, Kontogiannis' guilty plea was done in a secret, closed hearing. The plea agreement was unsealed earlier this month, and last week (Judge) Burns ordered that transcripts of four hearings related to the plea also be made public.

Federal prosecutors objected in motions filed under seal last week. Yesterday, the 9th U.S. Circuit Court of Appeal ordered the documents to remain secret and scheduled a hearing for the week of Aug. 6.

At a hearing in federal court in San Diego yesterday, Burns said that the government invoked federal laws dealing with classified information in their papers filed last week.

He said that when the secret hearings took place four months ago, prosecutors knew that the information would become open eventually, and did not object then.

The judge appeared irked that the government was now objecting to the information becoming public and was raising the issue of classified information “for the first time ever.”

Assistant U.S. Attorney Jason Forge said government lawyers decided after the hearings that they wanted more information kept secret than they first believed was necessary.

emptywheel: In other words, Lam may have needed Kontogiannis' cooperation to bring the first indictments against Wilkes, Michael, and Foggo. But she was gone by the time of the hearings being contested.

Gary comments: Also appears that the line level prosecutors were blindsided by this as they were not originally hot on the subject; clearly the move was ordered by DOJ Main. By who and why? I smell Cheney.

Laura Rosen connects "The Cunningham Case, the CIA and Off-the-Books Planes." emptywheel: It's narrow thinking to think of this type of case as a CIA issue, as Laura Rozen seems to be suggesting. It's far more likely related to a secret intelligence group not related or only tangentially related to the Agency...you know, the sort of thing set up in the OVP where nobody gets to peek, ever.

The new executive order that Mr. Bush signed on March 25 (2003) was ingenious. By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics.
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Timing really is everything. By March 2003, this White House knew its hype of Saddam's nonexistent nuclear arsenal was in grave danger of being exposed. The order allowed Mr. Bush to keep his own fingerprints off the nitty-gritty of any jihad against whistle-blowers by giving Mr. Cheney the authority to pick his own shots and handle the specifics. The president could have plausible deniability and was free to deliver non-denial denials like "If there is a leak out of my administration, I want to know who it is." Mr. Cheney in turn could delegate the actual dirty work to Mr. Libby, who obstructed justice to help throw a smoke screen over the vice president's own role in the effort to destroy Mr. Wilson.
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We're still playing catch-up. In a week in which the C.I.A. belatedly released severely censored secrets about agency scandals dating back a half-century, you have to wonder what else was done behind the shield of an executive order signed just after the Ides of March four years ago. Another half-century could pass before Americans learn the full story of the secrets buried by Mr. Cheney and his boss to cover up their deceitful path to war

emptywheel: "Classification Is Not Declassification"
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By using the phrase, "every provision that gave powers to the president over classified documents," Rich implies that this power included classification and declassification. But Bush did not revise the key section of the EO that defined Declassification Authority." Ha! I thought so.

6.30.2007 "When John Cornyn defects from the president," Mr. Jillson said, “you know the president’s mojo is completely gone.”

6.29.2007 Not One More Roberts or Alito By E.J. Dionne, Jr.

As Norman Ornstein of the American Enterprise Institute noted this week in Roll Call, the issue-ad decision demonstrated "not a careful, conservative deference to Congress" but instead "a willingness by Roberts to toss aside Congress' conclusions to fit his own ideological predispositions" -- the very definition of judicial activism.
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And if conservatives claim to believe the president is owed deference on his court appointees, they will be -- I choose this word deliberately -- lying. In 2005 conservatives had no problem blocking Bush's appointment of Harriet Miers because they could not count on her to be a strong voice for their legal causes. They revealed that their view of judicial battles is not about principle but power. When they went after Miers, conservatives lost the deference argument.

What is the moral of this story? Pay more attention to the structural background of judicial nominations, and less attention to whether a nominee sounds like a nice guy. Nobody should have been fooled by the Roberts nomination. If we pay attention to how partisan entrenchment works, we will follow the Who's advice-- we won't get fooled again.